거래관계에서 나타나는 의무준수에 대한 판례 분석

In the advance agreement on substitute payment with the contents in which a debtor promises to charge for the debt caused by loan for consumption to a creditor and to transfer the ownership of real estate in the future in order to guarantee this, the Supreme Court Decision dated on August 21, 2014 judged that this does not correspond to the breach crime of trust in criminal law even if selling the agreed proper real estate to the other because a debt, which will need to fulfill the contracted contents, conforms to 'own business' as far as there is no special reason. However, this attitude of the supreme court is evaluated positively in a point of having suggested the standard of logical distinction as for the legal liability and the other person's business attribute in light of the contract, but is thought to be likely to be a little insufficient as the base of judgment on whether it is the substitution for payment or was used as a means for payment in a transactional world. Accordingly, the court needs to regard this as own business work if there is in terms of whether a debtor has true cooperating duty in the relationship of the parties concerned, by more closely examining diverse types of contract structures that may be seen in the transactional world, and will make the best effort so that a well-intentioned victim cannot be created henceforth.